G & M Lath & Plaster Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 969 (N.L.R.B. 1980)

G AND M LATH AND PLASTER CO., INC.
G and M Lath and Plaster Co., Inc. and its alter ego
Central Texas Lath & Plastering Inc.; and
Power Wall Exterior Systems, Inc., and Larry
McCaslin and Bill Nichols, Individually, and d/
b/a Power Wall Fxterior Systems, Inc. and Op-
erative Plasterers and Cement Masons Interna-
tional Association, Local Union No. 783, AFL-
CIO and Central Texas Lath and Plaster Con-
tractors Association. Case 23-CA-7350
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 29, 1980, Administrative Law Judge
Jay R. Pollack issued the attached Decision in this
proceeding. Thereafter, Respondent Bill Nichols
filed joint exceptions and a brief with Respondent
Power Wall Exterior Systems, Inc.; and Respond-
ents G and M Lath and Plaster Co., Inc., Central
Texas Lath & Plastering, Inc., and Larry McCaslin
filed joint exceptions and a supporting brief. The
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
We agree with the Administrative Law Judge's
finding that G and M Lath and Plaster Co., Inc.,
and its alter ego Central Texas Lath & Plastering,
Inc., and Power Wall Exterior Systems, Inc., vio-
lated Section 8(a)(1) of the Act by refusing to
retain or employ Supervisor Osuna; Section 8(a)(3)
and (1) of the Act by refusing to retain or employ
plasterers and an apprentice plasterer; and Section
8(a)(5) and (1) of the Act by repudiating the cur-
rent collective-bargaining agreement and with-
drawing recognition of the Union. We also agree
with the Administrative Law Judge's finding that
Larry McCaslin, the president and sole stockholder
of G and M Lath and Plaster Co., Inc., is personal-
ly liable to remedy the unfair labor practices. How-
ever, we do not adopt the Admininstrative Law
I Respondent has excepted to certain credibility findings made by the
Administrative Lawv Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
252 NLRB No. 137
Judge's findings that Bill Nichols, the sole owner
of the stock of Power Wall Exterior Systems, Inc.,
is also personally liable.
Nichols is the sole proprietor of Power Wall
Company, a supplier of plastering and stucco mate-
rials. 2 In 1978 Nichols received all the stock of
Power Wall Exterior Systems, Inc., in payment of
a debt. Power Wall Exterior Systems, Inc., had
been incorporated earlier that year and had been
permitted by Nichols to use "Power Wall" in its
corporate name, but Nichols had had no financial
interest in the corporation prior to receiving its
stock.
In 1978,3 G and M Lath and Plaster Co., Inc.,
hereinafter called G and M, subcontracted with
Carter Homes to perform lath and plaster work on
an apartment complex. G and M purchased its ma-
terials and supplies from Power Wall Company.
On August 16, G and M was forced, for financial
reasons, to cease doing work on the Carter Homes
project. At this time, G and M owed Power Wall
Company approximately $20,000, of which $12,000
was owed for the Carter Homes project. Larry
McCaslin, president and sole shareholder of G and
M, met with Nichols, and it was decided that the
plaster and lath work on the project would be
completed by Power Wall Exterior Systems, Inc.,
with McCaslin acting as a supervisor. During nego-
tiations, McCaslin informed Nichols that the job
would be finished with nonunion labor. Power
Wall Company would be paid directly for materials
it furnished the job. Power Wall Exterior Systems,
Inc., finished the Carter Homes project utilizing G
and M's equipment, material, and employees except
for the plasterers and apprentice plasterer repre-
sented by the Union. For the remainder of 1978
and early 1979, Power Wall Exterior Systems, Inc.,
was in effect two separate operations with Nichols
operating in San Antonio and McCaslin operating
in Austin. Nichols' operation did not employ any
employees, but it did subcontract out a few jobs to
assure that Power Wall Company's products were
used on the jobs. Nichols neither took part in the
management of nor received any income from the
Austin operation, which was administered solely by
McCaslin. The Austin operation completed several
jobs bid and/or contracted for by G and M, using
the office, materials, and equipment owned by G
and M.
The Administrative Law Judge found that, al-
though Nichols had "no real ownership or control"
of McCaslin's Power Wall Exterior Systems, Inc.,
operation and did not personally commit any unfair
2 After Power Wall Company was incorporated in 1978, Nichols
became the president and sole stockholder.
3 All dates hereinafter refer to 1978
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices, he did permit McCaslin to profit
by using the name Power Wall Exterior Systems,
Inc., thereby permitting assets to be paid to Power
Wall Company instead of the Union or other credi-
tors of McCaslin and G and M. Therefore, he
found that it would be unjust to permit Nichols to
benefit either personally or through Power Wall
Company by his participation in the scheme or
plan to evade contractual or statutory obligations
to the Union if the other named Respondents could
not satisfy the backpay obligations. The Adminis-
trative law Judge accordingly found Nichols per-
sonally liable for the unfair labor practices found.
We disagree.
The General Counsel has failed to prove by a
preponderance of the evidence that Nichols permit-
ted McCaslin to use the corporate name of Power
Wall Exterior Systems, Inc., in order to avoid con-
tractual and statutory obligations with the Union.
Although Nichols was informed by McCaslin,
during the negotiations regarding whether Power
Wall Exterior Systems, Inc., would finish the
Carter Homes job for G and M, that the project
would be finished with nonunion labor, there is no
evidence that this was a motivating factor for
Nichols in negotiating the arrangement or that
Nichols was concerned about how McCaslin
would manage Power Wall Exterior Systems, Inc.,
in Austin. In fact, Nichols testified, and the Admin-
istrative Law Judge found, that Nichols arranged
for Power Wall Exterior Systems, Inc., to finish
the Carter Homes project because he did not want
to lose the money owed Power Wall Company by
G and M. In order to be assured of a market for
Power Wall Company in the Austin area, Nichols
also agreed that McCaslin would use the corporate
name of Power Wall Exterior Systems, Inc., in
Austin, to continue doing business as a plaster and
lath subcontractor. At this point, as found by the
Administrative Law Judge, Power Wall Exterior
Systems, Inc., became in effect two separate oper-
ations with Nichols operating in San Antonio and
McCaslin operating in Austin. Nichols did not take
part in the management of the Austin operation,
did not have access to the bank account it used,
and did not personally receive any money from it.
McCaslin bid the jobs, hired the employees, and
furnished the equipment and office space in Austin,
without consulting with Nichols or receiving any
input from him. Further, Nichols testified that one
of the reasons he terminated McCaslin's relation-
ship with Power Wall Exterior Systems, Inc., in
March 1979 was the unfair labor practice charge
filed against G and M. Therefore, we find that as
Nichols entered into the arrangement with McCas-
lin solely to protect Power Wall Company's finan-
cial status and was not involved in any way with
McCaslin's operation of Power Wall Exterior Sys-
tems, Inc., he is not personally liable for the unfair
labor practices committed by G and M and its alter
egos, including the Power Wall Exterior Systems,
Inc., operations in Austin.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as herein
modified, and hereby orders that the Respondents,
G and M Lath and Plaster Co., Inc., Austin, Texas;
Central Texas Lath & Plastering, Inc., Austin,
Texas; Power Wall Exterior Systems, Inc., Austin,
Texas; and Larry McCaslin, individually, and d/b/
a Power Wall Exterior Systems, Inc., Austin,
Texas, their officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order as so modified:
1. Substitute the following for paragraph (e):
"(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to recognize and bar-
gain collectively with Operative Plasterers and
Cement Masons International Association,
Local Union No. 783, AFL-CIO, as the exclu-
970
G AND M LATH AND PLASTER CO., INC
sive bargaining representative of our employ-
ees in the following appropriate unit:
All plasterers and plasterer apprentices em-
ployed by the employer-members of Central
Texas Lath and Plaster Contractors Associ-
ation, employed in the 33 counties of the
State of Texas, covered by the agreement
between the Association and the Union, ex-
cluding office clerical employees, guards
and supervisors as defined in the Act.
WE WILL NOT assign our contracts or do
business under a disguised entity, in an effort
to evade our bargaining relationship and to
escape our contractual and statutory obliga-
tions to the Union.
WE WILL NOT fail and refuse to apply to our
employees in the above-described bargaining
unit all the terms and conditions of our current
collective-bargaining agreement.
WE WILL NOT refuse to retain or employ
you or otherwise discriminate against you in
order to discourage membership in the Union,
or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights under the National Labor
Relations Act as set forth above.
WE WILL, upon request, recognize and bar-
gain collectively with Operative Plasterers and
Cement Masons International Association,
Local Union No. 783, AFL-CIO, as the exclu-
sive collective-bargaining representative of all
employees in the above-described bargaining
unit.
WE WILL apply the terms and conditions of
our current collective-bargaining agreement
with the Union, to all our employees in the
above-described bargaining unit.
WE WILL make whole all employees for any
losses sustained by our failure to apply the
terms and conditions of our collective-bargain-
ing agreement with the Union, with interest.
WE WILL offer immediate and full reinstate-
ment to Robert Buchanan, Alex Castillo,
Manuel Castillo, and John Osuna to their
former positions of employment or, if their
former positions no longer exist, to substantial-
ly equivalent positions, without prejudice to
their seniority or other rights or privileges pre-
viously enjoyed, and WE WILL make them
whole for any loss of pay and benefits they
may have suffered as a result of our discrimin-
atin against them, with interest.
G AND M LATH AND PLASTER CO.,
INC.; CENTRAL TEXAS LATH & PLAS-
TERING, INC.; POWER WALL EXTERI-
OR SYSTEMS, INC.; LARRY MCCASLIN
DECISION
STATEMENT OF THE CASE
JAY R. POILACK, Administrative Law Judge: The
hearing in this case was held before me in Austin, Texas,
on December 17 and 18, 1979, and January 18, 1980, and
is based on an unfair labor practice charge filed by Oper-
ative Plasterers and Cement Masons International Asso-
ciation, Local Union No. 783, AFL-CIO, herein called
the Union, on December 15, 1978, as amended on
August 6, 1979. On September 4, 1979, a complaint
issued on behalf of the General Counsel of the National
Labor Relations Board, herein called the Board, by the
Regional Director for Region 23. The complaint was
amended December 18, 1979, the second day of the hear-
ing.
The initial charge filed on December 15, 1978, was
filed against G and M Lath and Plaster Co., Inc., herein
called Respondent G & M. The amended charge filed on
August 6, 1979, added, as charged employers, Central
Texas Lath and Plastering, Inc., herein called Respond-
ent Central Texas, and Wall Exterior Systems, Inc.,
herein called Respondent Power Wall. The complaint
was issued against Respondent G & M, against Respond-
ent Central Texas as an alter ego to Respondent G & M,
and against Respondent Power Wall as a successor em-
ployer to Respondent G & M. The amendment to the
complaint sought to allege Respondent Power Wall as an
alter ego to Respondent G & M in addition to a succes-
sor, and to add Larry McCaslin (the sole shareholder of
Respondent G & M) and Bill Nichols (the sole share-
holder of Respondent Power Wall) as Respondents and
alter egos of Respondent G & M.' The complaint, as
amended, alleges in substance that Respondent G & M
violated Section 8(a)(3) and (1) of the Act by discharging
certain of its employees and that Respondents have failed
and refused to reinstate said employees because of the
employees' membership in the Union. The complaint fur-
ther alleges that Respondents violated Section 8(a)(5)
and (I) of the Act by withdrawing recognition from the
Union as the exclusive bargaining representative of an
appropriate unit of employees and by repudiating its col-
lective-bargaining contract with the Union covering
these employees. Respondents deny the commission of
the alleged unfair labor practices.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Based on the entire
' Counsel for Respondents G & M and Power Wall each stated on the
record that he was not making an appearance for the individual Respond-
ents (McCaslin or Nichols) in their individual capacities.
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record, 2 from my observation of the demeanor of the
witnesses, and having considered the parties' post-hear-
ing briefs, I make the following:
FINDINGS OF FACT
A. Background and Issues
The instant matter involves the nature of the relation-
ship between Respondents G & M and Power Wall, with
regard to a subcontract to perform lath and plastering
work at a residential construction project, known as the
Oakridge Apartments, in Austin, Texas, for Carter
Homes, a general contractor.
Respondent G & M has been engaged in the building
and construction industry as a lath and plaster subcon-
tractor since 1976. Its principal place of business has
been located in Austin, Texas. Since 1977, Respondent G
& M has been operated as a corporation, and Larry
McCaslin has been its sole shareholder since March 1978.
Respondent G & M has been party to a series of collec-
tive bargaining agreements with the Union since the fall
of 1976.3 The last agreement to which Respondent G &
M was a party was the 1977-80 agreement between the
Union and Central Texas Lath and Plaster Contractors
Association, a multiemployer association, herein called
the Association. The agreement is an Association-Union
agreement wherein "the [Association] recognizes the
Unions as the exclusive representative for collective bar-
gaining as to wages, fringe benefits, and working condi-
tions for all employees performing work within the juris-
diction of the Union." Further, "the Union recognizes
the [Association] as the exclusive bargaining agent repre-
senting contractors employing plasterers and apprentices
within the jurisdiction of the Union."4 Larry McCaslin
was one of the negotiators for the Association and signed
the agreement on its behalf.
Respondent Power Wall was incorporated in February
1978. At that time, Bill Nichols had no financial interest
in Respondent Power Wall. However, Nichols was sole
proprietor of the Power Wall Company, 5 a supplier of
plastering and stucco materials. Nichols permitted Re-
spondent Power Wall to "Power Wall" in its corporate
name in February 1978, and later that same year re-
ceived all the stock in the corporation as payment of a
debt. Prior to August 1978, there was no relationship be-
tween Respondents Power Wall and G & M. However,
Respondent G & M purchased materials and supplies
from the Power Wall Company, and was in debt to that
Company, at all times material herein.
Respondent G & M had a subcontract to perform the
lath and plastering work on a construction project,
2 On March 19, 1980, the counsel for the General Counsel made a
motion to correct the record. As the motion was unopposed, the correc-
tions contained therein are hereby granted and incorporated, sua sponte,
into the record as ALJ Exh. 1.
I The complaint alleges, the answer admits, and I find that the Union
has been, at all times material herein, a labor organization within the
meaning of Sec. 2(5) of the Act.
I The jurisdiction of the Union covers 33 counties in the State of
Texas.
5 The Power Wall Company was incorporated in October 1978, under
the name, Power Wall, Inc. Nichols became president and sole stock-
holder of its corporation.
known as the Oakridge Apartments, in Austin, Texas, for
Carter Homes, a general contractor. The instant case
arises out of the problems Respondent G & M encoun-
tered on that jobsite. Respondent G & M had agreed to
use and did use, materials supplied by the Power Wall
Company, in connection with the Carter Homes project.
In August 1978, Respondent G & M was behind in its
production schedule on the Carter Homes project. Re-
spondent G & M submitted vouchers for amounts of
money in excess of that which the general contractor
would pay according to the amount of work completed.
Thus, Carter Homes paid Respondent G & M approxi-
mately $20,000 less than the amount requested by vouch-
er. Under these circumstances, on August 16, 1978, Re-
spondent G & M ceased performing work on the Carter
Homes project and laid off its employees represented by
the Union. 6
At the time of the August 16 layoffs, Respondent G &
M was indebted to the Power Wall Company in the sum
of $12,000 for the Carter Homes project and approxi-
mately $20,000 in total. Shortly after the August 16 shut-
down, McCaslin, Nichols, and Jensen, a representative
from Carter Homes, met to discuss the completion of the
project. Unfortunately, the record is unclear as to what
occurred at this meeting. McCaslin and Nichols were
evasive in their testimony and appeared to be reluctant
to give testimony which they perceived could aid the
case against them.7 From the testimony of McCaslin and
Nichols it appears that sometime after the meeting, an
agreement was made between McCaslin, Nichols, and a
representative of Carter Homes, 8 that provided inter alia;
Respondent Power Wall would complete the lath and
plastering subcontract on the Carter Homes project;
Carter Homes would pay the Power Wall Company di-
rectly for all materials supplied to the job, Carter Homes
would pay Respondent Power Wall sufficient funds to
meet its payroll including a salary for McCaslin; 9 and
McCaslin would serve as Respondent Power Wall's su-
perintendent on the project, at a salary of $400 per
week.' ° According to Nichols, sometime after the meet-
ing with Jensen, McCaslin informed him that the Carter
6 According to McCaslin, he and some of his employees were on the
job the next few days in order to remove scaffolding, which had been
rented from a third party.
7 Neither Jensen nor any other official of Carter Homes, with knowl-
edge of the critical transaction, testified in this proceeding.
8 Nichols testified that he promised R. C. Carter, president of Carter
Homes, that he would get the job completed. McCaslin sent Nichols a
letter transferring the job from Respondent G & M to Respondent Power
Wall, which letter was approved by Robert Woods of Carter Homes.
Nichols testified that he never saw that letter prior to the instant hearing.
7 Nichols testified that Carter Homes agreed to pay a weekly payroll
draw to Respondent Power Wall. Scrutiny of the payments made by
Carter Homes reveals no such arrangement. Rather, Carter Homes made
sporadic payments to Respondent Power Wall based on a square footage
rate for completed work.
'o Nichols and McCaslin further agreed that McCaslin could continue
to bid and work other jobs on "his own," McCaslin did perform work on
other jobs, apparently doing business under Respondent Power Wall's
name. McCaslin's salary for all jobs appeared to be $400 per week for
September, October, and December, but slightly in excess of that amount
for November 1978. However, Respondent Power Wall did not receive
sufficient funds from the Carter Homes job in November or December to
make such payments to McCaslin.
972
G AND M LATH AND PLASTER CO.. INC.
Homes project would have to be completed with non-
union labor. I I
Pursuant to the agreement described above, Respond-
ent Power Wall worked on the Carter Homes job from
the end of August 1978 to March 1979, and received
payments for labor. The money received by Respondent
Power Wall was subsequently paid into Respondent G &
M's payroll account. McCaslin and Respondent Power
Wall's employees were paid on checks drawn on Re-
spondent G & M's payroll account. 2
Respondent Power Wall utilized the same equipment
and materials previously used by Respondent G & M. In-
dividuals who had been employed by Respondent G &
M as laborers and latherers performed all the work on
the job including the plastering work, previously done
by the plasterers represented by the Union. None of the
plasterers previously employed by Respondent G & M
were hired by Respondent Power Wall. However, two
of the four plasterers John Osuna and Robert Buchanan,
were offered employment by McCaslin under circum-
stances which will be discussed infra.
In the context of this factual framework, the General
Counsel makes the principal allegation that the entire
transaction, whereby Respondent G & M ceased work
on the Carter Homes project and Respondent Power
Wall commenced operations, was no more than a subter-
fuge designed to eliminate the Union as the bargaining
representative of the plasterers and apprentices employed
by Respondent G & M, and to avoid any further obliga-
tion by Respondent G & M to observe the terms of its
collective-bargaining agreement with the Union. To sup-
port that principal contention, the General Counsel ad-
vances several subsidiary allegations. First, it is contend-
ed that the decision to cease working on the Carter
Homes job, and the incident termination of all employees
working at the jobsite, had been the product of Respond-
ent G & M's unlawful determination to operate non-
union.13 Second, it is argued that Larry McCaslin and
Bill Nichols formed Respondent Power Wall 4 to oper-
ate as a disquised continuance and alter ego of Respond-
ent G & M, and, thus, all three entities are liable for the
unfair labor practices allegedly committed since August
16, 1978. Third, it argued in the alternative, that even if
Respondent Power Wall was not an alter ego of Re-
spondent G & M, Respondent Power Wall was a succes-
sor employer, and it independently violated the Act by
refusing to rehire the plasterers and apprentices, previ-
l" It appears Nichols had such information before finalizing the deal
with McCaslin and Carter Homes.
12 The reason given for the use of Respondent G & M's payroll ac-
count was to save moneys under Texas Unemployment Compensation
Laws. Respondent Power Wall as a new employer would have to pay
the maximum tax under law in contrast to the minimum amount paid by
Respondent G & M
It is noted that Nichols was not authorized to write checks on the ac-
count of Respondent Power Wall, which received moneys from the
Carter Homes jobs (and as will be discussed, infra, other jobs in the
Austin, Texas, area), and paid funds directly to the payroll account of
Respondent G & M. Nichols testified that in January 1979, he ordered
that a payroll account be opened for Respondent Power Wall
l3 See discussion infra.
14 Counsel for the General Counsel contends that Respondent Power
Wall was not a de facto corporation and that McCaslin and Nichols are
personally liable. He further argues that if Respondent Power Wall is
found to have been a corporation, the corporate veil should be pierced.
ously employed by Respondent G & M, because of their
affiliation with the Union.t 5 Fourth, it is asserted that
since April 1979, Respondent Central Texas has been a
disguised continuance and alter ego of Respondent G &
M and is, therefore, bound by Respondent G & M's col-
lective-bargaining agreement and liable for remedying its
unfair labor practices.
Respondents deny these subsidiary allegations, as well
as the principal contention. Instead, Respondents contend
that Respondent G & M was taken off the Carter Homes
project by the general contractor and that, in a straight
forward business transaction, Respondent Power Wall
completed the lath and plastering work on the project.
Moreover, Respondents contend that they were free to
withdraw recognition from the Union and repudiate the
contract in midterm, because there has been no showing
that in August 1978, when the alleged refusal to bargain
took place, that the Union represented a majority of Re-
spondent G & M's employees.
B. The Discussions Concerning "Open Shop"
It is undisputed that prior to the Company's financial
problems in August 1978, Respondent G & M and the
Union enjoyed a good working relationship. Allen
Alcorn, union business agent, credibly testified that
McCaslin telephoned him in May 1978, and asked what
would happen if he formed an open shop company or
subcontracted his work to an open shop subcontractor.
Alcorn told McCaslin that he did not know whether
McCaslin could do so as he had a contract with the
Union. McCaslin told Alcorn that he wanted to keep G
& M fair, but he also wanted to form another company,
or sub his work out to a nonunion contractor. Alcorn
mentioned that the Union might have to seek legal action
if McCaslin proceeded with his plans.'6 Alcorn further
testified that in July, McCaslin again asked if he could
form another company or subcontract his work to a non-
union company. Alcorn answered that he did not know
whether McCaslin could or could not, but if he could
not, the Union would take legal action.
Larry Carder, then a project administrator for Avery
Mays Construction Company, a general contractor for
which G & M was to perform lath and plastering work,
testified that in early August McCa 3lin told him that G
& M had another job going on and he was going to have
to go open shop on it and when he went open shop on
that job the Union would not furnish men for the Avery
Mays job. Carder testified that he had several such con-
versations with McCaslin. A. L. Stephenson, then a su-
perintendent for Avery Mays, testified that, on August
30 or 31, McCaslin told him that he (McCaslin) was
5s It is further argued that absent its unlawful refusal to hire Respond-
ent G & M's plasterers and apprentices, Respondent Power Wall would
have employed a majority of the workforce of Respondent G & M and
would, therefore, have been a successor employer, obligated to recognize
and bargain with the Union.
'6 McCaslin admitted discussing "open shop" as a topic with Alcorn
but denied discussing the possibility of G & M operating an open shop
McCaslin's testimony was vague and unconvincing, and I found him to
be reticent in giving testimony which he believed could be harmful to his
case I, therefore, do not credit McCaslin except where his testimony is
corroborated by objective evidence or other credible evidence.
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thinking of opening another company, and asked what
would happen if he brought nonunion labor on the job.
Stephenson answered that the job was all union, and that
the Company could not afford any delays caused by a
labor dispute.
C. The Shutdown of the Carter Homes Project and the
Termination of the Unit Employees
During August 1978, Respondent G & M's financial
situation worsened. G & M was behind in its production
schedule on the Carter Homes project and after Carter
Homes refused to pay its voucher, G & M on August 16
terminated its three plasterers and one plasterer appren-
tice on the job.
Approximately I week before the terminations,
McCaslin spoke with John Osune, plasterer foreman, and
asked Osuna whether the Union would let employees do
piecework. Osuna answered that the Union would not.
Then McCaslin stated that he was losing money, Osuna
offered to quit. McCaslin said he was not blaming Osuna,
but he was losing money and would have to look to
other sources. On August 16, McCaslin gave Osuna his
check and told him the job was over and he was going
to another source. McCaslin told Osuna that he had two
small jobs he wanted Osuna to do. However, McCaslin
never contacted Osuna about the other jobs.
After August 16, McCaslin and some of his laborers
were on the Carter Homes jobsite removing scaffolding,
cleaning materials, and equipment. On August 18, Alcorn
met with McCaslin at the Oakridge jobsite. According to
Alcorn, whom I credit, he asked McCaslin why he had
taken the union employees off the job, and McCaslin an-
swered that the employees had not been producing
enough work to continue on the job. Alcorn asked why
McCaslin had not notified him of the problem and given
him an opportunity to do something about it. McCaslin
answered that he did not really know he was in trouble
until the past month when he laid off the employees.
Alcorn offered to come out and work with the men for a
week if McCaslin would put them back on the job.
McCaslin answered that he was going to form another
company and do his work another way.
During the same time period as his conversation with
Alcorn, McCaslin met with Nichols and Jensen. In an
undated letter to Nichols, McCaslin assigned to Power
Wall Exterior Systems, Inc., the completion of the Oak-
ridge project for Carter Homes, effective August 17,
1978.17 The letter was approved by a Robert Woods of
Carter Homes. As mentioned above, McCaslin and Nich-
ols were reluctant to testify, with any specificity, as to
what arrangements were made between the parties.
According to Nichols and McCaslin, whom I cannot
credit,' 8 the agreement provided inter alia; Respondent
II Nichols testified that he had not seen this letter prior to the instant
hearing.
"i A trier of fact need not accept uncontradicted testimony as true if it
contains improbabilities or if there are reasonable grounds for concluding
that it is false. It is well settled that a witness' testimony may be contra-
dicted by circumstances as well as by statements, and that demeanor may
be considered in such circumstances. Operative Plasterers' Cement
Masons' International Association, Local 394 (Burnham Brothers. Inc.), 207
NLRB 147 (1973).
Power Wall would complete the lath and plastering sub-
contract on the Carter Homes project; Carter Homes
would pay the Power Wall Company directly for all ma-
terials supplied to the job; Carter Homes would pay Re-
spondent Power Wall's payroll costs, including a salary
for McCaslin: and McCaslin would serve as Respondent
Power Wall's superintendent on the project, at a salary
of $400 per week. Further, according to Nichols, in dis-
cussions concerning Respondent Power Wall's takeover
of the job, McCaslin informed him that the job had to be
completed with nonunion labor. Nichols also testified
that he told McCaslin that he (McCaslin) was free to
work other jobs on "his own."
The record shows that Carter Homes paid the Power
Wall Company and later Power Wall, Inc., directly for
the materials supplied to the job. However, the docu-
mentary evidence does not corroborate the other aspects
of the arrangement as testified to by Nichols and McCas-
lin. McCaslin billed Carter Homes on G & M's stationery
until January 1979. Contrary to the testimony, billings
were on a square-footage basis rather than on an hourly
basis. The price per square foot was considerably less
than the contract rate paid to Respondent G & M prior
to August 16.'9 However, that difference can be ex-
plained by the fact that after August 16 Carter Homes
was paying for material directly. Further it is noted, Re-
spondent G & M's name was used on bills for hardware,
initially submitted to Carter Homes but forwarded to G
& M for payment.
The documents do not show that McCaslin was paid
$400 per week for the Carter Homes project and could
also do other jobs on "his own." Rather, it appears
McCaslin performed jobs from August 1978 until March
1979, utilizing the name "Power Wall, Exteriors, Inc."
Respondent Power Wall completed several jobs which
had been previously bid by Respondent G & M. It does
McCaslin was a particularly unreliable witness. His testimony was
vague and he appeared reluctant to testify. His testimony with respect to
his business transactions was not corroborated but rather contradicted by
his business records Illustrative of such contradiction is McCaslin's testi-
mony that Respondent G & M was not doing any business after August
1978, but was engaged in a "winding down process." However, G & M's
business records showed activity from August to December 1978, in
excess of the Carter Homes project. On the other hand, there were no
business records at all for Respondent Power Wall Finally, no explana-
tion was offered for the inconsistencies between McCaslin's testimony
and the business records Based on the inconsistencies in his testimony,
the vagueness of his answers, his apparent reluctance to testify concern-
ing the critical transaction with Nichols, and his demeanor on the stand, I
do not credit McCaslin's testimony, even where uncontradicted.
Nichols, when first called by the General Counsel as an adverse wit-
ness, was vague in his recollection, and appeared reluctant to give testi-
mony However, when recalled to testify in Respondent Power Wall's
case, 4 weeks later, Nichols' recollection improved. Moreover, he was
able to find documents which he had previously been unable to produce
when subpenaed by the General Counsel. As with McCaslin, Nichols'
testimony as to the critical transaction concerning the Carter Homes job
was contradicted rather than corroborated by business records. For these
reasons and my observation of Nichols' demeanor on the stand, I do not
credit his testimony, even where uncontradicted.
is Respondent G & M had a contract with Carter Homes to perform
the lath and plastering work at tha Oakridge jobsite for $1.25 per square
foot. Apparently, Respondent G & M submitted the lowest bid for the
job Respondent Power Wall had no written contract with Carter
Homes It received 57 cents per square foot for work on the Oakridge
jobsite.
974
G AND M LATH AND PLASTER CO.., INC.
not appear that G & M performed any work in its own
name after August 16. No separate business records were
kept for Respondent Power Wall, 20 rather all its income
and expenses appear on the statements of Respondent Ci
& M. Thus, it is difficult to ascertain exactly what oc-
curred. Clearly, in November and December 1978, there
were insufficient funds from the Carter Homes project to
pay McCaslin's salary. However, McCaslin received
$2,350 in salary for November and $1,600 for December.
Respondent G & M's income and expenses for those
months clearly shows other jobs in progress. In fact
those jobs were bid by G & M, but performed under the
name of Respondent Power Wall. McCaslin testified that
Respondent G & M was not doing anything but winding
down during that time period. The record shows that
McCaslin continued to perform the same work, for the
same customers, using the same equipment and many of
the same employees. 2 t The only difference in McCaslin's
operation was that he was utilizing the name "Power
Wall Exterior Systems, Inc." McCaslin even held himself
out as president of Respondent Power Wall. Most signifi-
cantly, Bill Nichols, the actual president of Respondent
Power Wall, had no access to the bank account of
Power Wall Exterior Systems, Inc., opened and used by
McCaslin. Neither Nichols nor Power Wall Exterior
Systems, Inc., received any moneys from the operations
of Respondent Power Wall, "supervised" by McCaslin.
Nichols testified that he visited the jobs of Respondent
Power Wall, but those visits were charged to the Power
Wall Company and not to Respondent Power Wall.
These facts lead me to believe, contrary to the testimony
of Nichols2 2 and McCaslin, that the agreement between
them permitted McCaslin, to use the name "Power Wall
Exterior Systems, Inc.," to continue in business as a sub-
contractor and as a purchaser of materials from Nichols'
Power Wall Company. McCaslin so conducted his busi-
20 Respondent Power Wall became. in effect, two separate businesses
McCaslin's operation in Austin; and Nichols' operation in San Antonio
Nichols had no access to Respondent Power Wall's Austin, Texas, bank
account and received no money from that operation On the other hand
McCaslin received in excess of 7,100 from September to December
1978. McCaslin bid all the jobs for Respondent Power Wall in Austin and
hired all the employees. McCaslin furnished the equipment and office
space. There is no evidence that Nichols supplied or received anything
from this part of the operation Nichols' company, the Power Wall Com-
pany, apparently billed Respondent Power Wall for materials supplied.
Nichols' operation of Respondent Power Wall in San Antonio, Texas.
was a different operation. While that operation had no bank account.
office, or employees, Nichols did enter into contracts on its behalf Nich-
ols further entered into subcontracts on behalf of Respondent Power
Wall. There is no evidence that McCaslin had any connection or even
any knowledge of Nichols' operation of Respondent Power Wall in San
Antonio.
21 McCaslin hired employees who had previously worked for Re-
spondent G & M as laborers and lathers. The employees were paid less
than union scale and did not receive the fringe benefits provided for in
their respective bargaining agreements. The employees were paid on
checks drawn on Respondent G & M's payroll account. As discussed
supra, Respondent Power Wall had no payroll account.
22 Nichols testified that he believed if G & M "drowned on [the Carter
Homes] job it would drown on everything." Nichols also testified that he
was concerned over the future of his (the Power Wall Company's) prod-
ucts in relation to the Carter Homes job It is clear, as admitted by Nich-
ols, that he entered into this arrangement with McCaslin because he did
not want to lose the "10 to 20 thousand dollars" oed to his Company
by McCaslin's Company
ness and did so without regard to G & M's agreement
with the Union. 2 3
In January 1979, McCaslin, Carroll Knight, bookkeep-
er for McCaslin, Nichols, and Donald Cuba, attorney for
Nichols, met to discuss the possibility of Nichols and
McCaslin doing business together as Power Wall Exteri-
or Systems, Inc. During the meeting McCaslin presented
a check for $490 to purchase 49 percent of the stock of
Power Wall Exterior Systems, Inc., and received 49
shares. 24 Nichols, during the discussions, called off the
planned transaction. He first testified that the transaction
was called off because of McCaslin's (Respondent G &
M's) poor financial situation. However, Nichols later tes-
tified that a further reason for calling off the proposed
transaction with McCaslin was the unfair labor practice
charge filed against Respondent G & M by the Union.
McCaslin's relationship with Respondent Power Wall
ended in March 1979.25 In April 1979, McCaslin com-
menced doing business under the name of Respondent
Central Texas.
Respondent Central Texas is a Texas corporation with
offices in Austin, Texas, previously used by Respondent
G & M and Respondent Power Wall. McCaslin is the
sole stockholder and president of Respondent Central
Texas. Respondent Central Texas utilizes the same equip-
ment used by both G & M and Respondent Power Wall.
Jobs previously bid by Respondent G & M were com-
pleted by Respondent Central Texas and on at least one
job, work was performed under all three corporate
names. A foreman, Mac Belk, worked for G & M and
Respondent Power Wall and currently works as a fore-
man for Central Texas. 2 6
Analysis and Conclusions
A. The Relationship Between Respondent G & M and
Respondent Power Wall
There is considerable direct evidence showing that Re-
spondent Power Wall, during the period from August
1978 to January 1979, was no more than a "disguised
continuance" of Respondent G & M. See Howard John-
son Co., Inc. v. Detroit Local Joint Executive Board Hotel
and Resturant Employees & Bartenders International
Union, AFL-CIO, 417 U.S. 249, 259, fn. 5 (1974).
First, Respondent Power Wall was no more than a
corporate name for all practical purposes.2 7 All of the
assets used in its business in the Austin, Texas, area-the
27 In December 1978, McCaslin called Alcorn at the business agent's
home, and told Alcorn that he did not want anybody "snooping around
his job." Alcorn answered that his job was to monitor jobs. McCaslin
said that if Alcorn, kept snooping around the job, "somebody would be
missing their teeth.,"
24 The check apparently was later deposited in the account of Re-
spondent Power Wall used by McCaslin and to which McCaslin, but not
Nichols, had access.
2. Power Wall Exterior Systems. Inc., has filed suit in State court
against McCaslin, Respondent G & M and Respondent Central Texas, al-
leging, inter alia, tortuous interference with contract rights and a breach
of the fiduciary duty allegedly owed by McCaslin to Respondent Power
Wall.
2' Respondent G & M was dissolved as a corporation on July 3, 1979
27 As discussed supra, Respondent Power Wall was in actuality two
companies: McCaslin's company in Austin, Texas; and Nichols' company
in San Antonio, Texas
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office space, telephones, trucks, and the equipment-
were owned by McCaslin, either directly or by virtue of
McCaslin's ownership of all the stock of Respondent G
& M.
Second, Respondent Power Wall was in the identical
business as Respondent G & M, in the same geographical
area, and servicing the same jobsites as G & M. In fact,
Respondent Power Wall completed several jobs, bid
and/or contracted for by G & M. 28
Third, Respondent Power Wall's name was used by
McCaslin in order to avoid the Union contract of Re-
spondent G & M. Nichols permitted the use of his
wholly-owned corporation in an attempt to allow
McCaslin to escape financial obligations to the Union so
that McCaslin could pay off his debts to Nichols' major
financial interest, the Power Wall Company.
Fourth, McCaslin ran the day-to-day affairs of both
companies; i.e., the hiring and firing of employees and
established the labor relations policies of both companies.
I do not credit any testimony to the effect that Nichols
approved of or participated in the hiring of employees.
Further, Nichols' testimony that his visits to Respondent
Power Wall's jobsites were charged to the Power Wall
Company, leads me to conclude that such visits were on
behalf of that Company, in its role as a supplier. All of
the employees of Respondent Power Wall, in the Austin,
Texas, area2 9 were paid by checks drawn on the payroll
account of Respondent G & M.
Respondent Power Wall, at least until January 1979,
had no books or records. Rather, its financial operations
were included in the statements of G & M, prepared by
the bookkeeper for Respondent G & M.
Based on the foregoing, I am persuaded by the man-
agement, business purpose, operations, equipment, super-
vision, as well as the actual ownership of Respondent
Power Wall in Austin, Texas,30 that it was the intent of
McCaslin to operate nonunion and to avoid the obliga-
tions of Respondent G & M's agreement with the Union.
Under these circumstances, the record overwhelmingly
establishes that during the time period of approximately
August 17, 1978, until April 1, 1979, Respondent Power
Wall was operating as a disguised continuance and alter
ego of Respondent G & M. See, e.g., Circle T Corpora-
tion; Meat Men, Incorporated d/b/a Royal & Meat, 238
NLRB 245 (1978), enfd. 614 F.2d 777 (9th Cir. 1980);
Crawford Door Sales Company, Inc. and Cords Door Com-
pany, Inc., 226 NLRB 1144 (1976); Cf. Jersey Juniors,
28 See H. S. Brooks Electric. Inc., K & F Electric Co., Inc.; and Wal-
demer Nikolai, their agent, 233 NLRB 889, 894 (1977).
29 Respondent Power Wall's operations under Nichols had no employ-
ees. The few jobs it contracted for were subcontracted out. In effect.
these jobs were simply a means of assuring the use of the Power Wall
Company's product on the jobsite. As noted earlier, Nichols was not au-
thorized to write checks on the bank account of Respondent Power Wall
in Austin. It appears that Respondent Power Wall had no bank account
in San Antonio
30 Again, while noting Nichols was the sole shareholder of Respond-
ent Power Wall, he received no income and incurred no expenses from
its operation under McCaslin. The only benefit received by Nichols was
the payments made to the Power Wall Company by McCaslin's various
companies. Cf. Flite Chief Inc., Richard Miller and Karen Miller M & M
Trucking Coffee Shop, Inc.. James Miller and Paul A. Minder, 220 NLRB
1112 (1975). where the Board found that an alleged sale of a coffeeshop
to avoid unionization was a sham transaction.
Inc., 230 NLRB 329 (1977) (found to be a successor but
not an alter ego).
B. Respondent Central Texas is the Alter Ego of
Respondent G & M
Guided by the applicable principles of Circle T Corpo-
ration, Jersey Juniors, and Crawford Door, supra, I am per-
suaded, as alleged in the amended complaint, that Re-
spondent Central Texas is the alter ego of Respondent G
& M. As with Respondent Power Wall, Respondent
Central Texas has the same management, business pur-
pose, operation, equipiment, customers, and supervision as
well as ownership as Respondent G & M. The hiatus be-
tween the time Respondent G & M ceased operations
under its own name and the formation of Respondent
Central Texas is an unpersuasive reason for not finding
an alter ego relationship. When McCaslin was no longer
able to operate under the name of Respondent Power
Wall, he simply began doing business as Respondent
Central Texas. All other aspects remained the same.
C. Jurisdiction
The complaint alleges and Respondents G & M and
Central Texas admit that during the 12-month period
prior to issuance of the complaint Respondent G & M
and Respondent Central Texas, as a single employer, in
the course and conduct of their lathing and plastering
business, purchased and received goods and materials
valued in excess of $50,000, which goods and materials
originated outside the State of Texas and were received
by Respondent G & M and Respondent Central Texas
within the State of Texas. Since Respondent Power Wall
and Respondent Central Texas were alter ego of Re-
spondent G & M, Respondents G & M, Power Wall and
Central Texas constitute a single employer for jurisdic-
tional purposes, engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6)
and (7) of the Act. See Sturdevant Sheet Metal & Roofing
Co., Inc., and Orion Trading Company, Inc., d/b/a Sturde-
vant Roofing Company, 238 NLRB 186 (1978).
D. The Issue of MaCaslin's and Nichols' Individual
Liability for Remedying the Unfair Labor Practice
The General Counsel contends that Respondent Power
Wall was not a de facto corporation, and that individual
liability should be imposed on McCaslin and Nichols.
The General Counsel argues in the alternative that the
circumstances herein warrant piercing the corporate veil.
Respondents contend that Respondent Power Wall was a
legal corporation and that no basis exists for piercing the
corporate veil.
Respondent Power Wall was incorporated in January
1978 by John Nichols, Bill Nichols' son, Ted Leon, and
Frank Lazenby, Leon's brother-in-law, who planned to
do lath and plastering work in El Paso, Texas. Nichols
permitted the new Company to use the name "Power
Wall" in its corporate name. In the spring of 1978, Nich-
ols was given the Company in satisfaction of a debt
owed to Nichols' company, the Power Wall Company,
by Ted Leon. Nichols testified that at the time he took
over Respondent Power Wall it was "nothing more than
976
G AND M LATH AND PLASTER CO., INC.
a name." The Company never held a director's meeting
or a shareholder's meeting. Prior to the use of Respond-
ent Power Wall's name by McCaslin, the Company had
no office, no employees, and no bank account. Although,
the Company had entered into two contracts separate
and apart from McCaslin's operations, the Company
hired no employees but rather subcontracted out the
work. These transactions resulted in nothing more than a
means of assuring that the Power Wall Company's mate-
rials were used. Moreover, the money received from
these jobs was not deposited in an account of Power
Wall Exterior Systems, Inc., but rather was deposited in
accounts of other Nichols' companies.
In January 1979, McCaslin and Nichols met to discuss
the terms of joining together to do business under the
corporate name "Power Wall Exterior Systems, Inc."
However, because of McCaslin's poor financial position
and the pending unfair labor practice charge, Nichols
backed out of the deal. McCaslin's check for his shares
was deposited in McCaslin's "Power Wall Exterior"
bank account. Nichols never paid for, and was not
issued, any shares. At the time of the meeting Nichols
was contrary to Texas law, the president, vice president,
secretary-treasurer, and director of the corporation. Re-
spondent Power Wall's corporate charter was revoked
by the State of Texas on January 8, 1979, and was not
reinstated until October 3, 1979.
In determining whether to pierce the corporate veil,
the courts and the Board have looked beyond organiza-
tional form where an individual or corporate employer
was no more than an alter ego or a "disguised continu-
ance of the old employer"; or was in active concert or
participation in a scheme or plan of evasion; or siphoned
off assets for the purpose of rendering insolvent and frus-
trating a monetary obligation such as backpay; or so inte-
grated or intermingled his assets and affairs that "no dis-
tinct corporate lines are maintained." Riley Aeronautics
Corporation, 178 NLRB 495, 501 (1969).
In Carpet City Mechanical Company, Inc., 244 NLRB
1031 (1979), the Board affirmed the Administrative Law
Judge's finding that a major stockholder in the corpora-
tion (Simpson) was personally liable even as to a back-
pay order so that a total frustration of the policies of the
Act [would not be perpetrated. Id. ALJD, sec. III, D, 7.
Simpson had petitioned the state for dissolution of the
corporation and had represented to the state that all out-
standing debts were paid and that no lawsuits were pend-
ing despite the pending of the unfair labor practice case.
In two other recent cases the Board has held individ-
uals personally liable for remedying unfair labor prac-
tices of their corporations. In Ski Craft Sales Corp., the
alter ego of or successor to Harowitz Bros. Mfg. Corp. and
Sol Harowitz, 237 NLRB 122 (1978), the Board held an
individual personally liable where he owned, managed,
and controlled the corporations involved; he made the
decision to deactivate one corporation and to start manu-
facturing by an alter ego corporation; and he personally
refused to bargain with the Union. In D & I Trucking,
Inc., 237 NLRB 55 (1978), two individuals were held
personally liable to remedy the unfair labor practices of
two corporations. The two individuals solely owned and
operated D & I Trucking, Inc., and formed an alter ego to
evade their statutory obligation to bargain with the
Union. Based on their participation in the plan and
scheme of evasion coupled with an integration or inter-
mingling of business affairs with the two corporations,
individual liability was imposed.
In the instant case, McCaslin solely owned, managed,
and controlled Respondent G & M; he made the decision
to deactivate G & M and to start operating under the
name of Respondent Power Wall; and he personally re-
fused to employ the union plasterers and refused to bar-
gain with the Union. Thus, it is appropriate to hold
Larry McCaslin individually responsible, together with
the corporations, to remedy the unfair labor practices
found herein.
The issue of personal liability is more difficult with re-
spect to Bill Nichols. Nichols had no obligations with re-
spect to the Union; he had no real ownership or control
of McCaslin's "Power Wall Exterior" operations; and he
personally committed no unfair labor practices. Howev-
er, Nichols did permit McCaslin to use the corporate
name of Respondent Power Wall and he did so for the
benefit of his company, the Power Wall Company. By
doing so, Nichols aided McCaslin in performing his
work without the additional costs of the union contract,
and thereby permitted assets of McCaslin and G & M to
be paid to the Power Wall Company rather than to the
Union or other creditors of McCaslin and G & M.3 '
Moreover, Nichols intermingled personal and corporate
affairs and did not observe corporate formalities.
The circumstances of the transaction whereby McCas-
lin used the name of Nichols' Corporation as a disguised
continuance of his corporation, Respondent G & M, are
somewhat analogous to the sham transaction in Flite
Chief; Inc., 220 NLRB 1112 (1975). In that case a mar-
ried couple solely owned a corporation which ran a
truckstop and coffeeshop. In a sham transaction, they
transferred the coffeeshop to their son and a friend of the
family. All four individual participants were held jointly
liable with the corporations for remedying the unfair
labor practices. The two individuals posing as the buyers
of the coffeeshop were held personally liable in view of
the failure to show that they had leased the coffeeshop
to their corporation, 32 and in further view of the uncer-
tain status of their corporation as a legal entity. Id. at
1117. The rationale for holding the sellers individually
liable is not expressed. However, they did lease the cof-
feeshop, as part of the sham transaction, in their individ-
ual capacities.
31l The amount of the payments made by Respondent G & M to the
Power Wall Company over the critical period herein is unclear. Counsel
for Respondent G & M had marked, as an exhibit, a document showing
the indebtedness of Respondent G & M (and Respondent Power Wall) to
the Power Wall Company as of March 31, 1979. However, the document
was not Wall Company as of March 31, 1979. However, the document
was not authenticated or offered in evidence
It is further noted that Nichols received a $5,000 to S6,000 payment
after the completion of the Carter Homes project.
32 The real property, on which the businesses were situated, was
owned by the couple as joint tenants. Thus, the property was leased by
the joint tenants to the individuals because the corporation had not yet
been formed as of the date the parties planned to assert as the date of the
transaction
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all of the circumstances, it would be unjust if
the other named Respondents could not satisfy Respond-
ent G & M's backpay obligations, to permit Nichols to
benefit personally (or through the Power Wall Compa-
ny) by his participation in the plan or scheme to evade
contractual and statutory obligations to the Union. Thus,
without a showing that McCaslin and the corporate Re-
spondents can satisfy the backpay order without holding
Nichols personally liable, the remedy and order de-
scribed hereinbelow are directed to all named Respond-
ents including Nichols.
E. Service of the Charge and the Complaint
I reject Respondents' contention that the charge herein
is barred by the 6-month limitation period contained in
Section 10(b) of the Act. The alleged unfair labor prac-
tices commenced on August 16, 1978. Thus, the original
charge, which was filed against Respondent G & M on
December 15, 1978, served by registered mail on that en-
terprise at the office used by all three corporate Re-
spondents on that same date, and received on December
16, was filed well within the prescribed 6-month limita-
tion period. Since Respondent Power Wall (from August
1978 until March 1979) and Respondent Central Texas
(from April 1979) are alter egos of Respondent G & M,
service of the charge on G & M constitutes service on its
alter egos, particularly where, as in the instant case, the
alter egos acquired actual notice during the 6-month limi-
tation period. Sturdevant Sheet Metal & Roofing Co., Inc.
supra. Similarly McCaslin and Nichols discussed the
filing of the charge within the 10(b) period when they
decided not to go into business together. Thus, I find the
service of the initial charge on Respondent G & M to
constitute valid service on all Respondents herein. The
original complaint was served on the three corporate Re-
spondents. McCaslin and Nichols had actual notice of
the proceedings, and the statement that they were not
being represented in their individual capacities is unper-
suasive. The issues regarding alter ego status and individ-
ual liability were fairly and fully litigated and briefed by
all parties.
F. The Appropriate Unit
Respondents, citing Dee Cee Floor Covering,3 3 and
Higdon Contracting34 contend that there was no showing
that, in August 1978, when the repudiation of the con-
tract took place, the Union represented a majority of Re-
spondents' employees in an appropriate unit. The Gener-
al Counsel contends that Respondent G & M was part of
the multiemployer bargaining unit and that a 9(a) 3 5 rela-
tionship therefore existed, making inapposite Dee Cee
33 Dee Cee Floor Covering, Inc. and its alter ego and/or Successor.
Dagin-Akrab Floor Covering. Inc., 232 NLRB 421 (1978).
34 NL.R.B. v. Local Union No. 103. Inrernational Association of Bridge.
Structural and Ornamental Ironworkers. AFL-CIO (Higdon Contracting
Company. Inc.), 434 U.S. 335 (1978).
35 Sec. 9(a) in pertinent part provides:
Representatives designated or selected for the purposes of collective
bargaining by the majority (of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the em-
ployees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other condi-
tions of employment . ..
Floor and Higdon, which pertain to 8(f)36 relationships.
Thus, according to The General Counsel's theory of the
case, the Union's majority status is presumed based on
the successive bargaining agreements between the Union
and the Association. 37
There is no evidence as to what relationship the Union
and G & M had when their first bargaining agreement
was signed in 1976. Moreover, there is no evidence as to
whether the Union represented a majority of Respondent
G & M's employees when that Company became bound
to the multiemployer contract in 1977. In 1977, the ap-
propriate bargaining unit became the plasterers and ap-
prentices employed by the employer-members of the As-
sociation, in the 33 counties of Texas serviced by the
Union.
During the term of the existing contract the Union is
presumed to be the majority representative of the unit
employees. Pioneer Inn Associates d/b/a Pioneer Inn and
Pioneer Inn Casino v. N.L.R.B., 578 F.2d 835 (9th Cir.
1978). However, a prehire agreement in the construction
industry, while lawful by virtue of Section 8(f), does not
protect the Union from inquiry into its majority status
during the term of the bargaining agreement Higdon.
supra. Thus, an employer does not commit an unfair
labor practice under Section 8(a)(5) when it refuses to
honor the contract and bargain with the union, and the
union fails to establish in the unfair labor practice pro-
ceeding that it has ever had majority support. R. J.
Smith Construction Co., Inc., 191 NLRB 693 (1971), en-
forcement denied sub nom. Local No. 150 International
Union of Operating Engineers, AFL-CIO v. N.L.R.B., 480
F.2d 1186 (D.C. Cir. 1973); Ruttman Construction Com-
pany, and Ruttman Corporation, Joint Employers, 191
NLRB 701 (1971).
In Dee Cee Floor Covering, supra, the Board held that a
prehire agreement entered into pursuant to Section 8(f)
was not binding on the employer, for purposes of Sec-
36 Sec. 8(f) provides:
It shall not be an unfair labor practice under subsections (a) and (b)
of this section for an employer engaged primarily in the building and
construction industry to make an agreement covering employees en-
gaged (or who, upon their employment, will be engaged) in the
building and construction industry with a labor organization of
which building and construction employees are members (not estab-
lished, maintained, or assisted by any action defined in section 8(a) of
this Act as an unfair labor practice) because () the majority status of
such labor organization has not been established under the provisions
of Section 9 of this Act prior to the making of such agreement, or
(2) such agreement requires as a condition of employment, member-
ship in such labor organization after the seventh day following the
beginning of such employment or the effective date of the agree-
ment, whichever is later, or (3) such agreement requires the employ-
er to notify such labor organization of opportunities for employment
with such employment, or (4) such agreement specifies minimum
training or experience qualifications for employment or provides for
priority in opportunities for employment based upon length of serv-
ice with such employer, in the industry or in the particular geo-
graphical area: Provided, That nothing in this subsection shall set
aside the final proviso to section 8(aX3) of this Act: Provided further.
That any agreement which would be invalid, but for clause (1) of
this subsection, shall not be a bar to a petition filed pursuant to sec-
tion 9(c) or 9(e).
3' The Union has had a bargaining relationship with the Association
for some 8 years Prior to that time, the Union had a bargaining relation-
ship with a predecessor multiemployer association for some 50 years.
978
G AND N LATH ANI) PLASTER CO.. INC.
tion 8(a)(5) until such time as the Union demonstrated
that it enjoyed the support of a majority of the employ-
er's employees. The Board citing Irvin-.McKelv' 38 said
that the Union had to demonstrate its majority at each
new jobsite in order to invoke the provisions of Section
8(a)(5).
In Authorized A4ir Conditioning Co., 236 NLRB 131
(1978), the Administrative Law Judge found that at the
time the employer joined the multiemployer association,
the Union was the majority representative of its employ-
ees. The appropriate unit became the multiemployer bar-
gaining unit and the Administrative Judge found that the
employer had violated Section 8(a)(5) and (1) by with-
drawing from the multiemployer bargaining and refusing
to execute and abide by the agreement negotiated be-
tween the multiemployer association and the union. The
Board affirmed the findings and conclusions of the Ad-
ministrative Law Judge with the following footnote:
Respondents' reliance on David F Irvin and James
B. McKelvy, partners, d/b/a The Irvin-McKelvy Coinm-
pany, 194 NLRB 52 (1971), and other cases involv-
ing bargaining relationships under Sec. 8(f) is mis-
placed. No question of majority has been raised in
the appropriate multiemployer unit, and the repre-
sentative status of the Union among Respondents,
employees is immaterial as those employees consti-
tute only a small segment of the appropriate unit.
Id. at fn. 2.3 9
In the instant case, no evidence of a 8(f) prehiring
agreement was offered, and no question was raised con-
cerning the majority of the Union in the appropriate bar-
gaining unit. Hence, the Union's majority status with re-
spect to Respondent G & M is immaterial as its employ-
ees would constitute only a small segment of the appro-
priate unit. I find, based on the long bargaining history,
that the Union was presumptively the majority repre-
sentative of the employees in the multiemployer bargain-
ing unit. I further find that the presumption of majority
status was not rebutted. Therefore, Respondent G & M
was not free to withdraw recognition or to repudiate the
bargaining agreement.
Respondent Power Wall, as the disguised continuance
of Respondent G & M, was obligated to recognize the
Union and apply terms of the Union's collective-bargain-
ing agreement with Respondent G & M. See Wayne
Electric Inc,' and Electric Installation and Service, 226
NLRB 409, 414-415 (1976); Sossaman Electric Company
and Sosco Building Systems, Inc., 241 NLRB 324 (1979).
Similarly, Respondent Central Texas, as the alter ego
of Respondent G & M, was obligated to recognize the
Union and apply the terms of the Union's collective-bar-
gaining agreement with Respondent G & M.
In these circumstances, and in light of the alter ego
status of Respondents, I find that by repudiating the col-
lective-bargaining agreement, by not complying with its
terms, and by withdrawing recognition of the Union as
3 David F Irvin and James B. MrKelvy. partner. d/b/a The Irvin-
MeKelvy Company, 194 NLRB 52 (1971), enforcement denied in part 475
F.2d 1265 (3d Cir. 1973).
'9 See also .4mado Electric. Inc.. 238 N.RB 37, fn 1 (197)
the representative of its employees, Respondents have
violated Section 8(a)(5) and (1) of the Act. See Appala-
chian Construction, Inc. and SE-OZ Construction Compa-
ny, Inc., 235 NLRB 685 (1978).
G. The Unfair Labor Practices
The financial crisis suffered by Respondent G & M cli-
maxing in the failure of Carter Homes to pay its draw
caused the discharge of the employees represented by
the Union on August 16, 1978. However, effective
August 17, McCaslin assigned the job to Respondent G
& M's "disguised continuance" or alter ego, Respondent
Power Wall. The failure to employ the four unit employ-
ees was based on economic considerations; Respondent
G & M could save money by paying less than union
scale and by not paying the contractual fringe benefit
contributions. To accomplish that purpose the unit em-
ployees were replaced by employees willing to work
under nonunion conditions. The use of an alter ego or
"disguised continuance" to rid oneself of a union, even
though motivated by economic considerations is unlaw-
ful. N.L.R.B. v. Jack Lewis, and Joe Leviton, d/b/a Cali-
fornia Footwear Company & Trina Shoe Company. a Cor-
poration, 246 F.2d 886, 887-889 (9th Cir. 1957).
Whether McCaslin knew at the time of the layoff that
he intended to replace the union plasterers is immaterial,
as he immediately thereafter discriminated in hiring his
crew when the contract was assigned as of August 17.
Thus, I find Respondents violated Section 8(a)(3) of the
Act by refusing to employ the four unit employees of
Respondent G & M because of their affiliation with the
Union. See Karl Kallman d/b/a Love's Barbeque Restau-
rant No. 62; Love's Enterprise, Inc., 245 NLRB No. 17
(1979).
I have considered and rejected any contention that the
discharges were based on the failure of the employees to
adequately perform their work. McCaslin made such
statements to the Union, but under circumstances in
which he was attempting to disguise his real motive. It
appears that such defense was abandoned for purposes of
this proceeding. No evidence of inadequate work per-
formance was shown. Moreover, McCaslin turned down
an offer by Osuna to quit, telling Osuna that it was not
the foreman's fault that G & M was experiencing finan-
cial problems. Further, McCaslin turned down an offer
by Alcorn to work with the men and attempt to resolve
any work problems. These offers were turned down be-
cause McCaslin sought to solve his financial problems by
relieving himself of the financial burdens of the union
agreement.
H. The Failure To Employ Foreman John Osuna
The original comPlaint alleged that Respondents vio-
lated Section 8(a)(3) and (1) by discharging four named
unit employees on August 16, 1978, because of their af-
filiation with the Union. At the hearing, the General
Counsel amended the complaint by withdrawing the
name of John Osuna as an alleged discriminatee on the
ground that Osuna was a statutory supervisor. The Gen-
eral Counsel now seeks a finding that the discharge of
Osuna violated Section 8(a)(1), based on the recent
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board decisions in Nevis Industries4 0 and Downslope In-
dustries. 41
I have found that Respondents refused to employ all
of the plasterers and apprentices, including Osuna, as
part of a plan or scheme to evade contractual and statu-
tory obligations to the Union. Here Respondents' failure
to retain or employ Osuna, like its other unlawful con-
duct, was motivated by its desire to discourage union ac-
tivity among its employees "and was part of a pattern of
conduct to achieve that end." See DR W Corporation d/
b/a Brothers Three Cabinets, 248 NLRB 828 (1980).42
Thus, I find that Respondents' failure to employ Supervi-
sor John Osuna after August 17, 1978, violated Section
8(a)(l) of the Act.
THE REMEDY
Having found that Respondents G and M Lath and
Plaster Co., Inc., Central Texas Lath and Plastering,
Inc., Power Wall Exterior Systems, Inc., Larry McCas-
lin and Bill Nichols engaged in certain unfair labor prac-
tices, I shall recommend that they be ordered to cease
and desist therefrom and that they take certain affirma-
tive action to effectuate the policies of the Act.
Respondents shall be required to offer reinstatement to
their former positions of employment or, if these posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, to the four plasterers and apprentices it failed
to employ after August 17, 1978. There is insufficient
record evidence to determine whether the plasterers and
apprentices would have continued in Respondents'
employ after the Oakridge job was completed in March
1979. 4 a Under such circumstances, I believe it is appro-
priate to order reinstatement, and leave to the compli-
ance stage any modification of the reinstatement provi-
sion of the Order. See, e.g., Northridge Knitting Mills,
Inc., 225 NLRB 1054 (1976).
Respondents shall be required to make these employ-
ees whole for any loss of earnings they may have suf-
fered by reason of their unlawful terminations, with
backpay to be computed on a quarterly basis, making de-
ductions for interim earnings, F W Woolworth Company,
90 NLRB 289 (1950) and, additionally, shall be required
to make whole all employees for any losses sustained by
the failure to apply the terms and conditions of the 1977-
80 collective-bargaining agreement to all unit employees
working for Respondents after August 17, 1978. In both
instances, interest is to be paid on the amounts owing
and is to be computed in the manner prescribed in Flor-
40 Nevis Industries. Inc. d/b/a Freso Townehouse, 246 NLRB No. 167
(1979).
41 Downslope Industries, Inc. and Greenbrier Industries Inc., 246 NLRB
No. 132 (1979).
42 This finding is buttressed by the fact that Osuna had, in answer to
McCaslin's question, told McCaslin that the Union would not permit its
members to work for Respondents on a piecework basis.
o4 Respondents contend that apprentice Robert Buchanan was offered
employment in August 1978, and rejected the offer. While the credited
testimony of Buchanan shows that he was offered employment by
McCaslin, said offer was under nonunion conditions. Buchanan turned
down the offer because he did not want to risk retaliation by the Union.
Under these circumstances, Respondents are not relieved of the obliga-
tion of unconditionally offering Buchanan reinstatement.
ida Steel Corporation, 231 NLRB 651 (1977). See, gener-
ally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. G and M Lath and Plaster Co., Inc., Central Texas
Lath & Plastering, Inc., and Power Wall Exterior Sys-
tems, Inc., constitute a single employer for jurisdictional
purposes within the meaning of Section 2(2) of the Act,
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. It is appropriate under the circumstances of this case
to hold Larry McCaslin and Bill Nichols personally
liable to remedy the unfair labor practices found herein.
3. Operative Plasterers and Cement Masons Interna-
tional Association, Local Union No. 783, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
4. By refusing to retain or employ the plasterers and
apprentices employed by G and M Lath and Plastering
Co., Inc., Respondents violated Section 8(a)(3) and (I) of
the Act.
5. By refusing to retain or employ plasterer Foreman
John Osuna, Respondents violated Section 8(a)(l) of the
Act.
6. The unit appropriate for collective bargaining is:
All plasterers and plasterer apprentices employed
by the employer-members of the Central Texas
Lath and Plaster Contractors Association, within
the 33 counties of the State of Texas covered by the
1977-80 agreement between the Association and the
Union, excluding office clerical employees, guards
and supervisors as defined in the Act.
7. At all times material, the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees in the above-described unit within the meaning of
Section 9(a) of the Act.
8. By assigning its contract on August 17, 1978, and by
thereafter doing business under the disguised continu-
ances of Power Wall Exterior Systems, Inc., and Central
Texas Lath & Plastering, Inc., in an effort to evade its
existing bargaining relationship and to evade its contrac-
tual and statutory obligations to the Union; by failing
and refusing to apply the terms and conditions of the
current collective-bargaining agreement to the employees
employed by Respondent Power Wall and Respondent
Central Texas in the bargaining unit described above; by
repudiating the current collective-bargaining agreement;
and, by withdrawing recognition of the Union, as the
bargaining representative of its employees in the bargain-
ing unit described above, Respondent G and M Lath and
Plaster Co., Inc., and its alter egos, violated Section
8(a)(5) and (1) of the Act.
9. The unfair labor practices of Respondents, as de-
scribed above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
980
G AND M LATH AND PLASTER CO., INC.
ORDER4 4
The Respondents, G and M Lath and Plaster Co., Inc.,
Austin, Texas; Central Texas Lath & Plastering, Inc.
Austin, Texas; Power Wall Exterior Systems, Inc.,
Austin, Texas; Larry McCaslin and Bill Nichols, Austin,
Texas, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and to bargain collectively
with Operative Plasterers and Cement Masons Interna-
tional Association, Local Union No. 783, AFL-CIO, as
the exclusive bargaining representative of their employ-
ees in the bargaining unit heretofore found appropriate in
Conclusion of Law, above.
(b) Assigning their contracts, and thereafter doing
business under disguised continuances, in an effort to
evade their existing bargaining relationship and to evade
their contractual and statutory obligations to the Union.
(c) Failing and refusing to apply to all their employees
in the aforesaid contractual bargaining unit all terms and
conditions of the current collective-bargaining agree-
ment.
(d) Refusing to retain or employ or otherwise discrimi-
nating against employees with regard to hire or tenure of
employment or any term or condition of employment in
order to discourage membership in a labor organization
or in order to interfere with activity protected by Sec-
tion 7 of the Act.
(e) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act:
(a) Upon request, recognize and bargain collectively
with Operative Plasterers and Cement Masons Interna-
tional Association, Local Union No. 783, AFL-CIO, as
the exclusive bargaining representative of their employ-
44 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by
Sec. 102.46 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions, and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes.
ees employed in the bargaining unit heretofore found ap-
propriate in Conclusion of Law, above.
(b) Apply the terms and conditions of the current col-
lective-bargaining agreement with the Union, to their
employees employed in the aforesaid contractual bar-
gaining unit.
(c) Make whole employees for any loss of pay or
benefits which would have accrued to them under the
collective-bargaining agreement, but for the failure to
continue applying its terms and conditions to their em-
ployees employed in the aforesaid contractual bargaining
unit.
(d) Offer to Robert Buchanan, Alex Castillo, Manuel
Castillo, and John Osuna immediate and full reinstate-
ment to their former positions of employment, or, if their
former positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of pay and benefits they may have suffered as a
result of the discrimination against them, in the manner
set forth above in the section of this Decision entitled
"The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, all payroll and other records neces-
sary to compute the backpay and reinstatement rights set
forth in The Remedy section of this Decision.
(f) Post at their Texas places of business, copies of the
attached notice marked "Appendix." 45 Copies of the
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by the authorized rep-
resentative of Respondents, shall be posted by Respond-
ents immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondents to insure
that such notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
4' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
981